No. 18-5766...No. 18-5766 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _____ J AMES T...

No. 18-5766

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_____________________________________________________

JAMES THOMAS, DAVID HIXSON, Plaintiffs–Appellees,

v.

BILL HASLAM, governor of Tennessee, in his official capacity; DAVID W. PURKEY, Commissioner for the Department of Safety and Homeland

Security, in his official capacity; Defendants–Appellants.

On Appeal from the United States District Court for the Middle District of Tennessee, Nashville Division

No. 3:17-cv-00005, Aleta Arthur Trauger, Judge Presiding

BRIEF OF AMICI CURIAE INSTITUTE FOR JUSTICE AND

FINES AND FEES JUSTICE CENTER IN SUPPORT OF

PLAINTIFFS–APPELLEES AND AFFIRMANCE

Lisa Foster Joanna Weiss FINES AND FEES JUSTICE CENTER 185 W. Broadway, Suite C-538 New York, New York 10013 (619) 994-0504

William R. Maurer INSTITUTE FOR JUSTICE 600 University St., Suite 1730 Seattle, Washington 98101 (206) 957-1300 Andrew H. Ward INSTITUTE FOR JUSTICE 901 N. Glebe Rd., Suite 900 Arlington, Virginia 22203 (703) 682-9320

Case: 18-5766 Document: 32 Filed: 01/24/2019 Page: 1

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FRAP 26.1 STATEMENTS

I certify that amicus curiae Institute for Justice is not a publicly

held corporation and does not have any parent corporation and that no

publicly held corporation owns 10 percent or more of its stock.

/s/ William R. Maurer William R. Maurer Counsel for Amicus Curiae Institute for Justice

I certify that amicus curiae Fines and Fees Justice Center is not a

publicly held corporation and does not have any parent corporation and

that no publicly held corporation owns 10 percent or more of its stock.

/s/ Lisa Foster Lisa Foster Counsel for Amicus Curiae Fines and Fees Justice Center

Dated: January 24, 2019


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TABLE OF CONTENTS

Page INTERST OF AMICI CURIAE ............................................................. 1 ARGUMENT ......................................................................................... 2

I. The Rational Basis Test Does Not Countenance Irrational Laws .................................................................................... 5 A. The Rational Basis Test Involves Analysis of Logic, Facts,

and Evidence ................................................................... 5 i. A Law Must Be Logically Connected to the

Government Interest Offered to Support It ............ 7 ii. The Plausible Public Benefit of a Challenged Law

Cannot Be Vastly Outweighed by the Demonstrable Public Harm .......................................................... 9

iii. The Supreme Court Evaluates the Logic, Proportionality, and Legitimacy of the Government Interest in Light of Record Evidence ................... 11

B. The Sixth’s Circuit’s Application of the Rational Basis Test Also Requires Courts to Acknowledge Facts ....... 13

II. Revoking Driver’s Licenses of People Who Are Too Poor to Pay Their Court Debt Is Irrational and Harmful ............ 16 A. Stripping Driver’s Licenses of Those Who Are Too Poor to

Pay Court Debt in Order to Get Them to Pay Court Debt Is Irrational................................................................... 17

B. Stripping the Poor of their Ability to Drive Legally Significantly Harms Society ......................................... 23

CONCLUSION .................................................................................... 25 CERTIFICATE OF COMPLIANCE .................................................... 27 CERTIFICATE OF SERVICE ............................................................. 28


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TABLE OF AUTHORITIES

Page Cases Allegheny Pittsburgh Coal Co. v. County Commision, 488 U.S. 336 (1989) ...................................................................... 6, 9, 10 Armour v. City of Indianapolis, 566 U.S. 673 (2012) .............................................................................. 12 Bearden v. Georgia, 461 U.S. 660 (1983) ................................................................................ 2 Bell v. Burson, 402 U.S. 535, 539 (1971) ...................................................................... 17 Berger v. City of Mayfield Heights, 154 F.3d 621 (6th Cir. 1998) .......................................................... 13, 14 Bower v. Village of Mount Sterling, 44 F. App’x 670 (6th Cir. 2002) ............................................................ 13 Chappelle v. Greater Baton Rouge Airport District, 431 U.S. 159 (1977) ............................................................................ 6, 9 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ...................................................................... 6, 8, 12 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ................................................................................ 7 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) .......................................................... 13, 15 Curto v. City of Harper Woods, 954 F.2d 1237 (6th Cir. 1992) .................................................. 13, 15, 16


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Davis v. Weir, 497 F.2d 139 (5th Cir. 1974) ................................................................ 14 Eastman v. University of Michigan, 30 F.3d 670 (6th Cir. 1994) ............................................................ 13, 14 F.C.C. v. Beach Communications, Inc., 508 U.S. 307 (1993) .............................................................................. 11 Golden v. City of Columbus, 404 F.3d 950 (6th Cir. 2005) .................................................... 13, 14, 15 Griffin v. Illinois, 351 U.S. 12 (1956) .................................................................................. 2 Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985) ................................................................................ 6 James v. Strange, 407 U.S. 128 (1972) .......................................................................... 6, 10 Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................ 6 Lee v. City of Newport, 947 F.2d 945 (6th Cir. 1991) ................................................................ 13 Lindsey v. Normet, 405 U.S. 56 (1972) ............................................................................ 6, 10 Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012) .......................................................... 13, 16 M.L.B. v. S.L.J., 519 U.S. 102 (1996) ................................................................................ 2


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Mayer v. City of Chicago, 404 U.S. 189 (1971) ............................................................................ 6, 9 Metropolitan Life Insurace Co. v. Ward, 470 U.S. 869 (1985) ................................................................................ 6 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) .............................................................................. 12 Peoples Rights Organization v. City of Columbus, 152 F.3d 522 (6th Cir. 1998) .......................................................... 13, 14 Plyler v. Doe, 457 U.S. 202 (1982) ............................................................................ 6, 9 Quinn v. Millsap, 491 U.S. 95 (1989) .............................................................................. 6, 9 Reed v. Reed, 404 U.S. 71 (1971) ............................................................................ 6, 10 Romer v. Evans, 517 U.S. 620 (1996) .......................................................................... 6, 11 Seal v. Morgan, 229 F.3d 567 (6th Cir. 2000) .............................................. 13, 14, 15, 16 Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997) ................................................................ 13 Tanner v. Weinberger, 525 F.2d 51 (6th Cir. 1975) .................................................................. 13 Turner v. Fouche, 396 U.S. 346 (1970) ............................................................................ 6, 9 U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ............................................................................ 6, 9


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United States v. Carolene Products Co., 304 U.S. 144 (1938) ............................................................................. 12 United States v. Lopez, 514 U.S. 549 (1995) ................................................................................ 6 United States v. Morrison, 529 U.S. 598 (2000) ................................................................................ 6 United States v. Windsor, 570 U.S. 744 (2013) ................................................................................ 6 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ................................................................................ 6 Wagner v. Haslam, 112 F. Supp. 3d 673 (M.D. Tenn. 2015) ................................................. 5 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .............................................................................. 12 Williams v. Vermont, 472 U.S. 14 (1985) .......................................................................... 6, 8, 9 Zobel v. Williams, 457 U.S. 55 (1982) .......................................................................... 6, 7, 8 Constitutional Provisions U.S. Const. amend. XIV ............................................................................ 4 Statutes Tenn. Code Ann. § 40-24-105(b) ...................................................... passim


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Other Authorities American Association of Motor Vehicle Administrators,

Suspended/Revoked Working Group, Best Practices Guide to Reducing Suspended Drivers (2013) ........................................... 18, 20, 21, 23, 24

Andrea Marsh, Rethinking Driver’s License Suspensions for

Nonpayment of Fines and Fees, in Trends in State Courts: Fines, Fees, and Bail Practices: Challenges and Opportunities (Deborah W. Smith ed., 2017) .............................................................................................. 17

Central Indiana Transit Task Force, Summary Report on

Transportation Alternatives in Central Indiana (2010) ..................... 19 Jon A. Carnegie, Driver’s License Suspensions, Impacts and Fairness

Study (2007) ................................................................................... 19, 20 Mario Salas & Angela Ciolfi, Driven by Dollars: A State-By-State

Analysis of Driver’s License Suspension Laws for Failure to Pay Court Debt (2017) ........................................................................................... 22

Ryan T. Schwier & Autumn James, Roadblock to Economic

Independence: How Driver’s License Suspension Policies in Indiana Impede Self-Sufficiency, Burden State Government & Tax Public Resources (2016) ................................................................. 19, 21, 23, 24

Sandra Gustitus et al., Access to Driving and License Suspension

Policies for the Twenty-First Century Economy (2008) ........................... ...................................................................................... 17, 18, 19, 20, 21


1

INTEREST OF AMICI CURIAE

The Institute for Justice (“IJ”) is a nonprofit public-interest law

firm that litigates for greater judicial protection of individual rights.

These include the right to earn an honest living and acquire and enjoy

property without unreasonable governmental interference. Many of IJ’s

cases involve legal challenges to unconstitutional systems of fines, fees,

and forfeitures imposed on the poor and vulnerable. This case thus falls

squarely within a core area of concern for IJ.

The Fines and Fees Justice Center (“FFJC”) is a national center for

advocacy, information, and collaborations on effective solutions to the

unjust and harmful imposition and enforcement of fines and fees in state

and local courts. FFJC’s mission is to create a justice system that treats

individuals fairly, ensures public safety, and is funded equitably.1

1 No party or party’s counsel authored this brief in whole or in part, and no party or party’s counsel contributed money intended to fund the preparation or submission of this brief. No person—other than amici curiae—contributed money that was intended to fund the preparation or submission of this brief. Under Federal Rule of Appellate Procedure 29(a)(2), counsel for amici state that all parties have consented to the filing of this brief.


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ARGUMENT

In a line of cases stretching from Griffin v. Illinois, 351 U.S. 12

(1956), to M.L.B. v. S.L.J., 519 U.S. 102 (1996), the U.S. Supreme Court

has held that when the justice system treats people more harshly solely

because they are poor, due process and equal protection principles

converge in ways that defy the rote application of the Court’s traditional

tiers of judicial scrutiny. In Bearden v. Georgia, 461 U.S. 660 (1983), the

Court set out the more nuanced approach it uses for considering economic

disparities in the justice system. This approach requires the Court to

examine (1) the nature of the individual interest affected, (2) the extent

to which it is affected, (3) the rationality of the connection between the

legislative means and purpose, and (4) the existence of alternative means

to effectuate this purpose. Id. at 666. Because this case concerns a

penalty that falls more heavily on the poor than on the rich simply

because they are poor, this Court should analyze the statute here using

the principles set out in cases like Bearden instead of the tiered approach

used in due process and equal protection cases unrelated to the criminal

justice system. As the Plaintiffs–Appellees point out, under this

standard, the Tennessee law at issue here is unconstitutional.


3

Nonetheless, even if this Court examines this law under rational basis

review, the law is still unconstitutional because a statute that is facially

irrational, does not achieve any legitimate governmental goal, and

ultimately causes significant societal harm does not, and cannot, satisfy

the rational basis test.2

The law at issue here, Tenn. Code Ann. § 40-24-105(b) (“Section

105(b)”) mandates that the Tennessee Commissioner for the Department

of Safety and Homeland Security (the “Commissioner”) revoke the

driver’s license of any person who has failed to pay fines, costs, and

litigation taxes associated with a criminal conviction for a year or more.

The Commissioner asserts that this law is clearly related to the state’s

interest in defraying the costs of prosecution and conviction: “Revoking a

driver’s license when fines, taxes, and court costs go unpaid provides a

powerful incentive to pay them.” (Br. Def.–Appellant 25 (“Comm’r Br.”)).

As such, the Commissioner argues, the law does not violate the

Fourteenth Amendment’s guarantee of equal protection and due process

because it is rationally related to a legitimate interest.

2 Amici agree with Plaintiffs–Appellees that the law at issue here also deprives members of the class of procedural due process. However, amici ’s focus here is whether the law violates equal protection and substantive due process.


4

In making this argument, the Commissioner deploys a version of

the rational basis test that goes beyond deferring to the legislature’s

judgments to affirmatively ignoring reality. Under the Commissioner’s

view of the rational basis test, every law—regardless of how irrational,

harmful, useless, or counterproductive it is—would satisfy the test so

long as the government can provide some justification for it. However, a

law’s constitutionality does not depend on how imaginative the

government can be in justifying it.

Instead, both the U.S. Supreme Court and this Court strike down

laws under the rational basis test when there is no logical connection

between the action and the governmental interest and when the action

imposes a harm that vastly outweighs any plausible benefit. Section

105(b) and laws like it fail the rational basis test, as it is properly

understood, when evidence establishes that they are facially irrational,

are unsuccessful in achieving their goals, and impose significant harm to

society. Under relevant Supreme Court and Sixth Circuit precedent, this

means that such laws violate the guarantees of equal protection and due

process in the Fourteenth Amendment.


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The first portion of this brief lays out the proper version of the

rational basis test as used by both the U.S. Supreme Court and this

Court. The second portion of the brief applies the proper version of the

test and describes how laws like Section 105(b) fail that test.

The Rational Basis Test Does Not Countenance Irrational Laws.

The Commissioner argues that a law meets the rational basis test

even when it is unreasonable, counter-productive, and contrary to

evidence. (Comm’r Br. 23 (quoting Wagner v. Haslam, 112 F. Supp. 3d

673, 692 (M.D. Tenn. 2015))). This reading goes far beyond what the U.S.

Supreme Court and this Court have said about the test. Although the

rational basis test is deferential, it does require the application of some

actual standards.

A. The Rational Basis Test Involves Analysis of Logic, Facts, and Evidence.

Under the standard urged by the Commissioner, every law would

satisfy the rational basis test so long as the government could think of a

justification for it. If government justifications needed no factual

foundation whatsoever, the only limit on government power would be

human imagination. That standard would be meaningless—no plaintiff


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would ever win a rational basis case. But plaintiffs have won more than

20 rational basis cases before the Supreme Court since 1970,3 so there is

more to rational basis review than the Commissioner suggests.

Reviewing the opinions in which plaintiffs have prevailed in

rational basis cases demonstrates that the Supreme Court invalidates

government action under rational basis review in two circumstances:

(1) when there is no logical connection between the action and the

proffered government interest and (2) when the action imposes a harm

that vastly outweighs any plausible benefit.4 In considering these factors,

3 See United States v. Windsor, 570 U.S. 744, 774 (2013); id. at 793–94 (Scalia, J., dissenting) (noting that the Court relied on rational basis review); Lawrence v. Texas, 539 U.S. 558, 578 (2003); United States v. Morrison, 529 U.S. 598, 614–15 (2000); Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (per curiam); Romer v. Evans, 517 U.S. 620, 634–35 (1996); United States v. Lopez, 514 U.S. 549, 567 (1995); Quinn v. Millsap, 491 U.S. 95, 108 (1989); Allegheny Pittsburgh Coal Co. v. Cty. Comm’n, 488 U.S. 336, 345 (1989); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 449–50 (1985); Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 623 (1985); Williams v. Vermont, 472 U.S. 14, 24–25 (1985); Metro. Life Ins. Co. v. Ward, 470 U.S. 869, 880 (1985); Plyler v. Doe, 457 U.S. 202, 230 (1982); Zobel v. Williams, 457 U.S. 55, 61–63 (1982); Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977) (per curiam); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973); James v. Strange, 407 U.S. 128, 141–42 (1972); Lindsey v. Normet, 405 U.S. 56, 76–78 (1972); Mayer v. City of Chicago, 404 U.S. 189, 196–97 (1971); Reed v. Reed, 404 U.S. 71, 76–77 (1971); Turner v. Fouche, 396 U.S. 346, 363–64 (1970). 4 The Supreme Court also invalidates state actions when they are based on an illegitimate interest. See, e.g., Ward, 470 U.S. at 878 (economic favoritism); Romer, 517 U.S. at 635 (anti-gay animus); Cleburne, 473 U.S. at 450 (anti-disabled animus). For the sake of argument, amici assume that collection of court debt is a legitimate governmental interest.


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the Court evaluates the challenged action in the context of the record and

wider statutory background.

This section discusses the Court’s approach in these two

circumstances and discusses the fact that, in doing so, the Court relies on

evidence, not imagination.

i. A Law Must Be Logically Connected to the Government Interest Offered to Support It.

At the outset, it is important to remember that to survive the

rational basis test, a law must be “rationally related to a legitimate state

interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)

(emphasis added). Put another way, an irrational law fails the rational

basis test. Accordingly, the Supreme Court invalidates a statutory

classification if there is no logical connection between the classification

and the government interest offered to support it. This is because law

without logic is, at best, arbitrary.

Zobel v. Williams illustrates this principle. 457 U.S. 55, 56–58

(1982). There, a state program distributed oil money to Alaskans based

on the length of their state residency. Residents who lived in the state

since long before the law was enacted received considerably more than

those who moved to Alaska later. The Court struck down the program


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because Alaska’s asserted rationales provided no logical support for the

law. For example, Alaska justified the law, in part, by arguing that the

law would encourage settlement in the sparsely populated state. The

Court rejected this justification because it was illogical to pay long-term

residents more than recent ones if the goal was to encourage people to

move to Alaska. Id. at 62.

The no-logical-connection principle underlies the Supreme Court’s

reasoning in other rational basis decisions. In City of Cleburne v.

Cleburne Living Center, for example, the Court recognized that a city

could in some cases validly deny a permit to a proposed group home if the

home would be too big. But the Court found no logical connection between

that principle and the City’s actions, given that similarly-sized homes

were routinely granted permits. 473 U.S. 432, 449–50 (1985). And in

Williams v. Vermont, Vermont taxed cars purchased out of state to

encourage its residents to purchase cars in the state, but the Court found

no logical connection between that interest and taxing cars that were


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purchased out of state before their owners moved to Vermont. 472 U.S.

14, 24–25 (1985).5

ii. The Plausible Public Benefit of a Challenged Law Cannot Be Vastly Outweighed by the Demonstrable Public Harm.

A statutory classification also fails rational basis review when the

challenged law causes a public harm far greater than any plausible public

benefit. For example, in Plyler v. Doe, the government argued that

denying public education to the children of illegal immigrants could help

save the government money. 457 U.S. 202, 207 (1982). The Court rejected

this argument, noting that the alleged benefit was “wholly insubstantial

in light of the costs involved to these children, the State, and the Nation”

of creating a subclass of illiterates. Id. at 230. Similarly, in Allegheny

Pittsburgh Coal Co. v. County Commission, the Court struck down a West

Virginia statute that assessed property taxes based on the most recent

5 See also Quinn, 491 U.S. at 108 (finding no logical connection between an individual’s ability to understand politics and an individual’s ownership or non-ownership of land); Chappelle, 431 U.S. at 159 (same); Moreno, 413 U.S. at 534 (finding no logical connection between stimulating the agricultural economy and providing food stamps to only households containing people who are related to one another); Mayer, 404 U.S. at 196 (finding that, where the government had adopted a policy that inability to pay was not a sufficient reason to deny a transcript to a felony defendant, there was no logical reason that policy should not extend to a misdemeanor defendant); Turner, 396 U.S. at 363–64 (finding no logical connection between fitness for political office and property ownership).


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sale price. 488 U.S. 336, 343–46 (1989). This method resulted in gross

disparities in tax liability between similar properties arbitrarily based on

how long ago the property had been sold. Id. at 344. The Court held that

the tax violated the Equal Protection Clause because the asserted public

benefit—administrative convenience for the government—was trivial

compared to the manifest injustice of assigning tax liability arbitrarily.

Of particular relevance is James v. Strange, which held that the

state funds saved by denying indigent defendants exceptions to the

enforcement of debt judgments was grossly disproportionate to the harms

it inflicted on debtors. 407 U.S. 128, 141–42 (1972). Similarly, as

discussed below, the Tennessee statute here causes grossly

disproportionate harm to the poor when compared to the meager (or,

more accurately, nonexistent) benefit provided to the public.6

6 See also Lindsey, 405 U.S. at 77–78 (holding that deterring a few frivolous appeals did not justify a surety requirement that allowed many frivolous appeals, blocked many meritorious appeals, and showered a windfall on landlords); Reed, 404 U.S. at 76–77 (holding that attempting to reduce the workload of the probate courts by excluding women from service as administrators in certain cases would be unconstitutionally arbitrary).


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iii. The Supreme Court Evaluates the Logic, Proportionality, and Legitimacy of the Government Interest in Light of Record Evidence.

The preceding subsections described two circumstances under

which the Supreme Court invalidates challenged laws under rational

basis review. This subsection explains that the Court uses evidence when

it applies the test. This clarification is necessary because dicta describing

the test sometimes suggest that actual facts do not matter. See F.C.C. v.

Beach Commc’ns, 508 U.S. 307, 315 (1993). But judicial suggestions that

facts are irrelevant do not square with how the Supreme Court actually

adjudicates rational basis cases.

To be sure, the government does not have an affirmative

evidentiary burden. But the Supreme Court does allow plaintiffs to

adduce evidence to refute the government’s asserted justifications. As the

Court stated in Romer v. Evans, a classification must be “narrow enough

in scope and grounded in a sufficient factual context for us to ascertain

some relation between the classification and the purpose it served.”

517 U.S. 620, 632–33 (1996) (emphasis added). In that case, as in other

rational basis decisions, the Supreme Court structured its analysis


12

around the actual facts in the record, not just around the government’s

imagined possibilities.

The ability to tender evidence that refutes purported rationales is

long-standing. In the seminal case of United States v. Carolene Products

Co., the Court stated:

Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.

304 U.S. 144, 153 (1938) (citations omitted).7 In other words, the rational

basis test does not require the court to accept what is false as if it were

true.

7 See also Armour v. City of Indianapolis, 566 U.S. 673, 681 (2012) (the assumption that a law rests upon some rational basis may be precluded “in the light of the facts made known or generally assumed” (quoting Carolene Products, 304 U.S. at 152)); Cleburne, 473 U.S. at 449 (citing the district court’s post-trial findings of fact and appellate court’s reliance on those findings); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7 (1981) (“In equal protection analysis, this Court will assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces us to conclude that they could not have been a goal of the legislation.” (internal quotation marks omitted)); Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (“This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.”).


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B. The Sixth Circuit’s Application of the Rational Basis Test Also Requires Courts to Acknowledge Facts.

This Court has likewise applied a version of the rational basis test

distinct from that urged by the Commissioner. Indeed, since 1970, this

Court has deemed state action invalid under that standard at least a

dozen times.8

In Golden v. City of Columbus, this Court made clear that state

action in this Circuit must relate to a government interest not just

conceivably, but rationally. 404 F.3d 950 (6th Cir. 2005). Golden

considered a city’s practice of cutting off water service to tenants whose

landlords were delinquent on their water bills. Of course, the Court was

aware that shutting off people’s water had some relationship to debt

collection: conceivably, the tenants might pay themselves (or convince

their landlords to pay). But this Court nonetheless deemed the scheme

8 See Loesel v. City of Frankenmuth, 692 F.3d 452, 465–66 (6th Cir. 2012); Golden v. City of Columbus, 404 F.3d 950, 960–63 (6th Cir. 2005); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002); Seal v. Morgan, 229 F.3d 567, 575–79 (6th Cir. 2000); Berger v. City of Mayfield Heights, 154 F.3d 621 (6th Cir. 1998); Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 531–32 (6th Cir. 1998); Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir. 1997); Eastman v. Univ. of Mich., 30 F.3d 670, 673–74 (6th Cir. 1994); Curto v. City of Harper Woods, 954 F.2d 1237, 1243–44 (6th Cir. 1992) (per curiam); Tanner v. Weinberger, 525 F.2d 51 (6th Cir. 1975); Bower v. Vill. of Mt. Sterling, 44 F. App’x 670, 677–78 (6th Cir. 2002); Lee v. City of Newport, 947 F.2d 945 (6th Cir. 1991) (table).


14

unconstitutional because terminating a tenant’s water service was not “a

rational means of collecting” from landlords: it was “divorce[d] … from

the reality” of who owed the debt. Id. at 961–62 (emphasis added) (second

quotation from Davis v. Weir, 497 F.2d 139, 144 (5th Cir. 1974)).

Similarly, in Seal v. Morgan—a case about a student expelled

despite his claim that he did not know there was a knife in his car—this

Court held that a school’s zero-tolerance policy for contraband would

have no rational basis without a mens rea requirement. 229 F.3d 567 (6th

Cir. 2000). Certainly one can imagine reasons a strict-liability

contraband policy might benefit schools. But the Court recognized that

students cannot avoid (let alone use) contraband they do not know about,

and that it makes no sense to punish people for circumstances they

cannot change. Id. at 575–80. There was thus no rational basis to punish

students for unknowing possession of contraband.9

9 See also, e.g., Berger, 154 F.3d at 624–26 (deeming ordinance requiring only lots with less than 100 feet of street frontage to be totally cleared not rationally related to various environmental interests); Peoples Rights, 152 F.3d at 531–32 (deeming assault-weapon ban irrational when it had exception for weapons registered under vague statute); Eastman, 30 F.3d at 673–74 (holding that a duration-of-residency requirement could not rationally be imposed on a true domiciliary).


15

Both Golden and Seal hinged on the fact that the law punished

people who could not resolve the issue the government wanted resolved.

Tennessee’s revocation of driver’s licenses does the same: Section 105(b)

tries to force people (drivers who cannot pay their court debt) to do

something they cannot do (pay their court debt) and inflicts a substantial

penalty for their failure to comply (revocation of their driver’s licenses).

This Court has also based its decisions in rational basis cases on

real-world evidence. In Craigmiles v. Giles, casket sellers challenged a

Tennessee law requiring that they become funeral directors, which

involved two years of education and training largely irrelevant to caskets.

312 F.3d 220 (6th Cir. 2002). Rather than conduct a purely hypothetical

analysis, this Court relied on “evidence that funeral home operators

[sold] caskets at prices substantially over total costs” and on the lack of

record evidence that licensed funeral directors were selling more

protective caskets. Id. at 224–26. That record led the Court to the obvious

conclusion that the law was motivated by economic protectionism and

was hurting, rather than protecting, Tennessee consumers. Reliance on

evidence has also led this Court to remand a rational basis claim “for

further development of the record,” Curto v. City of Harper Woods,


16

954 F.2d 1237, 1244 (6th Cir. 1992) (per curiam), and to approve a fact-

intensive jury determination that a zoning ordinance lacked a rational

basis, Loesel v. City of Frankenmuth, 692 F.3d 452, 465–66 (6th Cir.

2012).10

If the Commissioner were correct that the government could win

every rational basis case by stating any justification it could imagine, the

government would have won each of these cases. But the government did

not. Thus, in this Circuit as in the Supreme Court, the rational basis test

does require meaningful analysis. Deference to the state’s rational

decisions “does not mean that [the Court] must, or should, rationalize

away [the state’s] irrational decisions.” Seal, 299 F.3d at 579.

Revoking Driver’s Licenses of People Who Are Too Poor to Pay Their Court Debt Is Irrational and Harmful.

Under these standards, Section 105(b) fails. Both Plaintiffs–

Appellees and the district court correctly analyzed the facts produced by

the parties before that court. Amici here discuss additional facts that

reinforce these conclusions. The issue of stripping driver’s licenses is one

10 See also Seal, 229 F.3d at 579 (noting the importance of evidence in determining whether the state acted rationally).


17

that a number of researchers and analysts have examined. Their findings

bolster the conclusion that Section 105(b) is unconstitutional.11

A. Stripping Driver’s Licenses of Those Who Are Too Poor to Pay Court Debt in Order to Get Them to Pay Court Debt Is Irrational.

Almost 50 years ago, the U.S. Supreme Court noted that “[o]nce

[driver’s] licenses are issued … their continued possession may become

essential in the pursuit of a livelihood.” Bell v. Burson, 402 U.S. 535, 539

(1971). Time has changed “may become” to “is.” Eighty-six percent of

Americans drive to work. Andrea Marsh, Rethinking Driver’s License

Suspensions for Nonpayment of Fines and Fees, in Trends in State Courts:

Fines, Fees, and Bail Practices: Challenges and Opportunities 20, 22

(Deborah W. Smith ed., 2017), available at https://www.ncsc.org/~/

media/Microsites/Files/Trends%202017/Trends-2017-Final-small.ashx.

The percentage of Tennesseans who drive to work is even higher—93.4%.

(Order, RE113 PageID#1205). “Access to driving—including a reliable,

affordable vehicle and a valid driver’s license—is vital to economic

security, strong communities, and a healthy economy.” Sandra Gustitus

11 The facts discussed in this section are drawn from scholarly studies or other analyses based on public data and sources. As such, this Court may take notice of them under Fed. R. Evid. 201(b)(2).


https://www.ncsc.org/%7E/media/Microsites/Files/Trends%202017/Trends-2017-Final-small.ashx

https://www.ncsc.org/%7E/media/Microsites/Files/Trends%202017/Trends-2017-Final-small.ashx

18

et al., Access to Driving and License Suspension Policies for the Twenty-

First Century Economy 4 (2008), available at http://www.kidscount

.org/news/fes/sep2008/driverslicense.pdf (“Access to Driving”). Stripping

a defendant of his or her driver’s license thus directly interferes with a

defendant’s ability to travel to work to earn money to pay for court debt

the government seeks. For instance, one study of New Jersey found that

“42% of drivers lost their job after their driving privilege was suspended.

Of those drivers, 45% were unable to find new employment. Of those that

were able to find another job, 88% reported a decrease in income.” Am.

Ass’n of Motor Vehicle Admins., Suspended/Revoked Working Group,

Best Practices Guide to Reducing Suspended Drivers 6 (2013), available

at https://www.aamva.org/Suspended-and-Revoked-Drivers-Working-

Group/ (“Best Practices”).

This misery is not spread equally. For people living in densely

populated, vibrant metropolitan areas with public transportation

options, losing one’s driver’s license might be barely an inconvenience.

For people in rural and exurban areas, mass transit options simply do

not exist. “For those without regular access to a car, access to jobs,

medical care, and leisure are incomplete, inefficient and inconvenient.”


http://www.kidscount.org/news/fes/sep2008/driverslicense.pdf

http://www.kidscount.org/news/fes/sep2008/driverslicense.pdf

https://www.aamva.org/Suspended-and-Revoked-Drivers-Working-Group/

https://www.aamva.org/Suspended-and-Revoked-Drivers-Working-Group/

19

See Ryan T. Schwier & Autumn James, Roadblock to Economic

Independence: How Driver’s License Suspension Policies in Indiana

Impede Self-Sufficiency, Burden State Government & Tax Public

Resources 33 (2016), available at https://mckinneylaw.iu.edu/practice/

clinics/_docs/DL_Rpt_2-1-16.pdf (“Roadblocks”) (quoting Central Ind.

Transit Task Force, Summary Report on Transportation Alternatives in

Central Indiana 3 (2010)) (discussing the effect that loss of a driver’s

license has on Indianans)). People who live in depressed urban areas also

lose their ability to travel to areas where jobs are more plentiful. As with

many things, these policies affect low-income residents more than the

rich, because those who are less able to pay fines and fees are often

concentrated in these kinds of urban areas. Jon A. Carnegie, Driver’s

License Suspensions, Impacts and Fairness Study 3 (2007), available at

https://www.state.nj.us/transportation/refdata/research/reports/FHWA-

NJ-2007-020-V1.pdf (“Fairness Study”).

Even if public transportation is an option in a particular geographic

area, not having a driver’s license can completely foreclose a defendant’s

ability to work in certain fields altogether. “[S]ome employers,

particularly in the construction and health care fields, require a driver’s


https://mckinneylaw.iu.edu/practice/clinics/_docs/DL_Rpt_2-1-16.pdf

https://mckinneylaw.iu.edu/practice/clinics/_docs/DL_Rpt_2-1-16.pdf

https://www.state.nj.us/transportation/refdata/research/reports/FHWA-NJ-2007-020-V1.pdf

https://www.state.nj.us/transportation/refdata/research/reports/FHWA-NJ-2007-020-V1.pdf

20

license as a precondition for employment—either because driving is part

of the job, or as a way to screen applicants.” Access to Driving 9. For

construction workers, cab drivers, ambulance drivers, auto salespeople,

or even people who supplement their income driving for Uber or Lyft,

losing their driver’s license can mean, at best, a decrease in income, and,

at worst, the loss of the ability to work at all.

To this, one must add that losing a driver’s license comes with

considerable costs. “[Driver’s license] suspension results in increased

financial obligations through new requirements such as reinstatement

fees, court costs and other penalties.” Best Practices 6. In one study,

“[t]wo-thirds of respondents with a history of suspension reported

experiencing other costs (in addition to increased costs for insurance)

resulting from their suspension. Approximately three-quarters of these

respondents indicated they could not afford the additional costs.”

Fairness Study 56.

Cars play an integral role not only in a driver’s economic life but

also in modern American life generally. “86 percent of all trips are made

in a car. People have many other important needs for transportation

[besides getting to work], including care of family members, participation


21

in community and civic activities, and travel to school, worship, health

care, and shopping.” Access to Driving 4–5 (footnote omitted). Thus,

“many drivers continue to drive even after their licenses are suspended.”

Id. at 9. Because driving is so important, people are willing to break the

law in order to continue to do it: “According to a 2003 report from the

National Cooperative Highway Research Program, an estimated 75% [of]

motorists with suspended or revoked driver’s licenses simply continue

driving.” Roadblocks 20. Laws like Section 105(b) thus “dramatically

increase[] the number of suspended drivers on our roads resulting in a

tremendous burden on law enforcement, departments of motor vehicles,

the courts, and local communities.” Best Practices 4.

This irrational system would have a better chance of surviving

rational basis review if there were some connection between the policy

and its goal of forcing drivers to pay their court debt. There is no such

connection, however. “The common belief that a driver license suspension

provides effective, sustainable motivation to encourage individuals to

comply with court ordered or legislated mandates to avoid suspension is

not supported by empirical evidence.” Best Practices 4. Indeed, the

District Court here found that Section 105(b) is “powerfully


22

counterproductive.” (Order, RE113, PageID#1200). Amici have searched

for and have been unable to find, a single study, analysis, article, or

discussion that demonstrates that depriving a driver of his or her license

makes that driver more likely to pay outstanding court debt.

Put simply,

license-for-payment systems irrationally tend to deprive vulnerable people of the means by which they can pay their debts and take care of themselves and their families, and create a vicious cycle. People cannot afford to pay, so they lose their licenses. When they lose their licenses, they cannot legally drive to work, so they lose their jobs or cannot find jobs. Even those who can find another job may experience a decrease in pay. All of these forces result in people being less likely to pay court debts, which can lead to additional court involvement.

Mario Salas & Angela Ciolfi, Driven by Dollars: A State-By-State Analysis

of Driver’s License Suspension Laws for Failure to Pay Court Debt 4

(2017) (footnote omitted), available at https://www.justice4all.org/wp-

content/uploads/2017/09/Driven-by-Dollars.pdf. Section 105(b) does this

while manifestly failing to do what it was intended to do. (See Order,

RE113, PageID#1199 (only 7% of the drivers who had their license

revoked had their license reinstated)). It is difficult to conceive of a more

irrational system. For this reason, Section 105(b) fails the rational basis

test.


https://www.justice4all.org/wp-content/uploads/2017/09/Driven-by-Dollars.pdf

https://www.justice4all.org/wp-content/uploads/2017/09/Driven-by-Dollars.pdf

23

B. Stripping the Poor of their Ability to Drive Legally Significantly Harms Society.

Laws like Section 105(b) are not only irrational and ineffective, they

are affirmatively harmful to society. The harm to drivers who lose their

licenses is discussed above. Unfortunately, the harm caused by this

misguided policy does not stop there.

Among those harmed by this policy are other drivers and the law

enforcement personnel entrusted to keep them safe. “Police officers spend

countless hours citing, arresting, and processing persons found driving

on suspended licenses. This not only imposes a significant strain on law

enforcement budgets and other resources, but also detracts from highway

and public safety priorities.” Roadblocks 35. Police officers must make

the effort to write the ticket for driving without a license and often arrest

the driver but also must appear in court for the ticket. This can leave the

officer’s patrol area unattended and also makes the officer unavailable

for enforcement activities that actually make the public safer:

When a law enforcement officer encounters a suspended driver, their ability to help ensure the safety of drivers on the roadways and their availability to respond to calls for service are reduced. The officer must take appropriate action for the violation and later appear in court for adjudication of the ticket(s). While the officer is in court, there may be little or no enforcement presence in their patrol area. Officers are made


24

unavailable for 911 responses, crash investigation, criminal interdiction, and other enforcement activities, potentially increasing the threat to public safety.

Best Practices 2–3.

Moreover, the sheer number of drivers driving with revoked or

suspended licenses means that they make up a substantial portion of

trial court dockets and consume limited judicial resources. Roadblocks

36. In some cases, driving without a license can lead to incarceration in

state prison, an absurd and harmful outcome in many instances for the

driver, prison security, the state budget, and state taxpayers. Roadblocks

26 (noting that 200 people are incarcerated in state prison in Indiana for

driving without a license).

Stripping drivers of their licenses also has the perverse effect of

making that punishment less effective. That so many drivers continue to

drive with suspended or revoked licenses dilutes the effectiveness of the

punishment, while increasing the burden on law enforcement and the

criminal justice system. “Consequently, law enforcement, courts and

society in general view suspensions less seriously. As a result, the system

is less effective in keeping dangerous drivers off the road, which was the

original intent of driver license suspensions.” Best Practices 5.


25

In sum, it is difficult to identify who is not harmed by this irrational

system. Laws like Section 105(b) make people poorer, damage families,

increase reliance on social welfare programs, prevent the police from

protecting the public, consume limited prosecutorial, judicial, and penal

resources, and encourage people to break the law. Section 105(b) does

this in order to force people to pay debt they cannot pay in the first place.

Not only is this policy not rational, it is barely sane. It simply does not

pass the rational basis test.

CONCLUSION

The Supreme Court and this Court have been clear that rational

basis review is meaningful, and this Court should resist the

Commissioner’s request for blind deference. Instead, this Court should

recognize that, for many people in Tennessee and elsewhere, a driver’s

license is essential to earning a living. Punishing people by interfering

with their livelihoods and harming society with this misguided law are

not rational ways to effect Tennessee’s interest in collecting court debt.

For that reason, this Court should affirm.


26

Dated: January 24, 2019 Respectfully submitted,

Lisa Foster Joanna Weiss FINES AND FEES JUSTICE CENTER 185 W. Broadway, C-538 New York City, NY 10013 (619) 994-0504 Counsel for Amicus Curiae Fines and Fees Justice Center

/s/ William R. Maurer William R. Maurer INSTITUTE FOR JUSTICE 600 University St., Suite 1730 Seattle, Washington 98101 (206) 957-1300 Andrew H. Ward INSTITUTE FOR JUSTICE 901 N. Glebe Rd., Suite 900 Arlington, Virginia 22203 (703) 682-9320 Counsel for Amicus Curiae Institute for Justice


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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation in Federal

Rules of Appellate Procedure 32(a)(7)(B) and 29(a)(5) because it contains

5,434 words, as determined by the word-count function of Microsoft Word

for Office 365, excluding the parts of the brief exempted by Federal Rule

of Appellate Procedure 32(f) and Sixth Circuit Rule 32(b)(1).

This brief complies with the font requirements of Federal Rule of

Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared

in a proportionally spaced typeface (Century Schoolbook) and a 14-point

font.



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CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of January, 2019, the foregoing

Brief of Amici Curiae Institute for Justice and Fines and Fees Justice

Center in Support of Plaintiffs–Appellees and Affirmance was served

through the Court’s CM/ECF system on counsel for all parties required

to be served.



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